By Earthjustice attorney Kristen Boyles

The news started coming in on a late September Saturday in 2002. Hundreds of salmon, maybe thousands of salmon, were floating belly-up in the lower Klamath River. The first emails were tentative, as folks in northern California wrote "we think there’s a fish kill going on." By Monday, no one was using the word "think." The count of dead fish was in the thousands and rising; people said you could smell the river way before you could see it—the stench of dead salmon hanging in the hot California air. In the end, the California Department of Fish and Game estimated the count at over 65,000 dead fish. [View photos & video]

For many, the Klamath River is distant and unknown, starting above the Oregon/California border and rushing to the sea amidst giant redwood trees north of Eureka, California, some 280 miles north of San Francisco. The river used to be the third largest salmon producer on the west coast, and its salmon and steelhead runs supported commercial and recreational fishing, as well as anchored vibrant Native American tribes. But steady habitat degradation is wearing the river out. Upstream irrigation often takes more than half of the water out of the river, dams on the mainstem block hundreds of miles of salmon spawning habitat, and smaller actions — timber sales along stream banks, groundwater withdrawals—provide a classic example of "death by a thousand cuts."

I got those first emails about the fish kill because of our ongoing legal battle over keeping enough water in the Klamath River for salmon and other fish. That spring, the federal agency responsible for protecting Klamath River salmon lost its nerve and capitulated to a ten-year plan for dividing water in the river between salmon and upstream irrigation that clearly put salmon last. Working with commercial fishermen, environmental groups, and several Indian tribes, we sought emergency relief in the spring and lost, and all summer we worried about low river flows and what would happen when the adult salmon returned to spawn. As the news of the fish kill spread, I was finishing a draft of an amended complaint in the case—this time challenging the entire plan as illegal. The timing of that legal filing had been set months before by the court, but now it corresponded with the fish kill.

While no one could have anticipated the full extent of the fish kill, as Ronnie Pierce, our expert fisheries biologist, growled over the phone, "we told them this could happen." As the fall rains washed salmon carcasses out to sea, I turned to writing legal briefs and explaining to a federal judge how skewed the balance of the Klamath River had become. Almost a year passed before we got a decision from the court, agreeing with many of our claims about long-term problems with the Klamath ten-year plan, but ruling against us on issues that affected the next few years. We appealed that part of the decision to the Ninth Circuit Court of Appeals, and as I again began writing about the legal problems with a system that allowed more water to flow in the irrigation canals than in the river, I crossed my fingers and hoped that we would not see another tragedy.

In 2005, we began to see a different ripple of harm from the fish kill. Because the tens of thousands of adult salmon died in the river before they could spawn, we confronted a missing generation of fish. In a year when other salmon stocks along the west coast had strong returns, the low numbers of Klamath salmon meant that the commercial fishing season had to be shortened. This blow fell on already struggling fishermen, who have been working with us to protect the Klamath River and salmon habitat. Finally, in the fall of 2005, the appellate court handed us a complete victory—finding that the short-term impacts of the 10-year plan ignored salmon science.

But federal court cases are sometimes out-of-step with the ecosystems they are trying to protect, and for weeks now, the news from the Klamath River has once again been bleak. Despite healthy chinook salmon runs in the Sacramento and other rivers, the chinook returns to the Klamath are predicted to be extremely low for the third year in a row. In an effort to ensure the survival of the Klamath chinook, the Pacific Fisheries Management Council has recommended that the 2006 commercial salmon fishing season for Southern Oregon and Northern California be virtually eliminated.

In the midst of all this dark news, two small lights glimmer. Just last month, the district court judge ordered the federal agencies charged with protecting Klamath salmon to redo the ten-year water management plan for irrigation in order to leave more water in the river for fish. Most importantly for the short term, the court set a minimum water flow level, based on the agencies’ own science, to protect the salmon while the new plan is devised. A court case cannot solve the problems on the Klamath, but I hope that it will help redefine the priorities for the region so that people can sit down together and protect the river, its fish, and the downstream communities that depend on it.

Second, in the proceedings to re-license the Klamath dams, the federal fisheries agencies announced that they believed the best choice for the river was to remove the four dams. Short of removal, the agencies asserted that expensive fish ladders would have to be installed. Although these are only preliminary recommendations, they represent a strong scientific stand from the government.

I did not travel down to the Klamath during the fish kill—a decision I regret. A year later, I rode a jet boat from the mouth of the Klamath at Requa to the juncture with Blue Creek, one of the places where an eddy had captured hundreds of dead salmon bodies a year before. Herons stood still as we buzzed passed, and sea lions swimming in from the ocean now and then leapt out of the water thrashing after fish. Yurok families waved from campsites along the river while untangling fishing nets. The Yurok biologists I was with said that none of the tribal elders could remember such a fish kill, although the river often got hot late in the summer. At Blue Creek, well below our boat, a group of large dark salmon darted, scared of our shadows.